# Su v. Kwiat

> District Court, N.D. New York · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10659928

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10659928

## How later opinions describe it (automated extraction)

- observing that “OSHA does not incorporate a statutory duty to mitigate damages as does Title VII”
- observing, in the Title VII retaliation context, that a plaintiff “need only demonstrate that she had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JULIE A. SU, Acting Secretary of Labor, United
States Department of Labor,

Plaintiff,
1:22-cv-00264 (AMN/DJS)
v.

KWIAT EYE AND LASER SURGERY, PLLC,
and DR. DAVID KWIAT,

Defendants.

APPEARANCES: OF COUNSEL:

U.S. DEPARTMENT OF LABOR BERTHA M. ASTORGA, ESQ.
Office of the Solicitor
201 Varick Street
New York, NY 10014
Attorneys for Plaintiff

HURWITZ FINE P.C. ANASTASIA M. MCCARTHY, ESQ.
1300 Liberty Building MAXWELL C. RADLEY, ESQ.
424 Main Street DAVID R. ADAMS, ESQ.
Buffalo, NY 14202 JODY E. BRIANDI, ESQ.
Attorneys for Defendants Kwiat Eye and MICHAEL F. PERLEY, ESQ.
Laser Surgery, PLLC, and Dr. David Kwiat SCOTT D. KAGAN, ESQ.
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
In this action, Plaintiff United States Secretary of Labor (“Plaintiff”) filed suit against
Defendants Dr. David Kwiat (“Dr. Kwiat”) and his business, Kwiat Eye and Laser Surgery, PLLC
(“KELS”), alleging a single claim for retaliation pursuant to Section 11(c) of the Occupational
Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 660(c) (“Section 11(c)”). Dkt. No. 1 (the
“Complaint”). On July 28, 2023, the Court denied Dr. Kwiat’s motion to dismiss the Complaint.
Dkt. No. 66. Presently before the Court is Defendants’ motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 (“Rule 56”) seeking to dismiss the Complaint in its entirety,
Dkt. No. 91 (“Defendants’ Motion”), and Plaintiff’s motion for summary judgment pursuant to
Rule 56 seeking judgment in her favor, injunctive relief, and an award of damages and costs, Dkt.
No. 92 (“Plaintiff’s Motion”). Plaintiff and Defendants each filed responses in opposition to the

other’s Motion, Dkt. Nos. 94 (“Defendants’ Opposition”); 95 (“Plaintiff’s Opposition”), and each
replied in support of their respective Motion, Dkt. Nos. 96 (“Defendants’ Reply”); 97 (“Plaintiff’s
Reply”). Additionally, before the Court is a Report-Recommendation and Order issued by United
States Magistrate Judge Daniel J. Stewart recommending that the Court hold Dr. Kwiat in
contempt and impose a $1,250 fine for his failure to comply with the Court’s February 14, 2023
Discovery Order, Dkt. No. 28 (the “Discovery Order”). Dkt. No. 90 (the “Report-
Recommendation”). Neither party has filed objections to the Report-Recommendation.
For the reasons set forth below, Defendants’ Motion is denied, Plaintiff’s Motion is granted
in part and denied in part, and the Report-Recommendations is adopted in its entirety.

II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment is properly granted only if, upon reviewing the evidence in the light
most favorable to the nonmovant, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A court first
determines “whether the evidence presents a sufficient disagreement to require submission to a
[factfinder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). “When analyzing a summary judgment
motion, the court ‘cannot try issues of fact; it can only determine whether there are issues to be
tried.’” Galeotti v. Cianbro Corp., No. 5:12-cv-00900 (MAD/TWD), 2013 WL 3207312, at *4
(N.D.N.Y. June 24, 2013) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36-37 (2d
Cir. 1994)).
“The party seeking summary judgment bears the burden of establishing that no genuine

issue of material fact exists and that the undisputed facts establish her right to judgment as a matter
of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995) (citation omitted).
To determine whether a genuine issue of material fact exists, a court must resolve all ambiguities
and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); accord Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d
Cir. 2002). A “material” fact is one that would “affect the outcome of the suit under the governing
law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a
reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248; accord R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). A court should “grant

summary judgment where the nonmovant’s evidence is merely colorable, conclusory, speculative
or not significantly probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638 (S.D.N.Y. 1997)
(citing, inter alia, Anderson, 477 U.S. at 249-50).
B. Review of a Report-Recommendation
This Court reviews de novo those portions of a magistrate judge’s report-recommendation
that have been properly preserved with a specific objection. 28 U.S.C. § 636(b)(1)(C). If no
specific objections have been filed, this Court reviews a magistrate judge’s report-recommendation
for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 229 (N.D.N.Y. 2012) (citing Fed. R.
Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). “When performing [ ] a ‘clear error’
review, ‘the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Dezarea W. v. Comm’r of Soc. Sec., No. 6:21-CV-01138
(MAD/TWD), 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of
Soc. Sec., No. 1:17-CV-0367 (GTS/WBC), 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)). After appropriate review, “the court may accept, reject or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
A. Relevant Facts
Unless otherwise indicated, the following facts have been asserted by the parties in their
statements of material facts with accurate record citations, and expressly admitted or not denied
with a supporting record citation in response.
Dr. Kwiat was the sole owner and president of KELS, which provides ophthalmological
services, including eye exams, eye screenings, diagnostic modalities for eye diseases, and
outpatient treatment of medical eye disease out of its Amsterdam, New York office, for the period
of time relevant to this action. Dkt. No. 94-8 at 1-2.1 As part of his role, Dr. Kwiat had the

authority to hire, discipline, and fire KELS employees. Dkt. No. 94-8 at 2.
The complainant in this action, Ms. Jenna Coolman (“Ms. Coolman”), was employed at
KELS as an ophthalmological technician from July 2017 until February 24, 2021. Dkt. No. 95-1
at 1 (admitting to Dkt. No. 91-9 ¶ 5). As part of her role, Ms. Coolman’s duties required her to be
face-to-face with, or in close physical proximity to, KELS patients. Dkt. No. 94-8 at 3.
On March 7, 2020, the governor of New York State declared a Disaster Emergency in the

1 Citations to docket entries utilize the pagination generated by CM/ECF docketing system and not
the documents’ internal pagination.
State amidst the threat posed by COVID-19, and a few weeks later the State issued a series of
health and safety mandates, called “PAUSE” mandates, to address the dangers posed by the virus.
Dkt. No. 94-8 at 4. Effective April 15, 2020, pursuant to an executive order, New York State
required that “any employees who are present in the workplace shall be provided and shall wear
face coverings when in direct contact with customers or members of the public.” Dkt. No. 92-16

at 3 (emphasis added) (the “Mask Mandate”).2 Defendants did not require KELS employees to
wear masks in compliance with the Mask Mandate, which they maintain only required that masks
be made available. See Dkt. No. 94-8 at 5 (disputing that Defendants did not comply with the
various COVID mandates because, inter alia, “Dr. Kwiat supplied masks for the practice’s
employees,” and all employees were “permitted” “to wear a mask to work”). Additionally, by
mid-2020, New York State required essential businesses to implement daily health screening
practices, such as questionnaires and temperature checks (the “Screening Mandate”), which KELS
never implemented. Id. at 5; cf. Dkt. No. 91-9 at 2 (listing KELS’s COVID precautions).
Following Ms. Coolman’s complaints about COVID Mandate compliance internally at

KELS, which her manager perceived as “general complaints and not official complaints[,]” Dkt.
No. 94-8 at 6, she submitted complaints about the same to the New York State Department of
Health (“NYSDOH”) in December 2020 and again in January 2021. Id. at 7. Ms. Coolman’s
complaints to NYSDOH included allegations that KELS was not complying with the Mask
Mandate or Screening Mandate. Dkt. No. 91-9 at 4-5; Dkt. No. 94-8 at 7. Following up on Ms.
Coolman’s complaints, the NYSDOH contacted Dr. Kwiat on February 24, 2021, and Dr. Kwiat
fired Ms. Coolman that same morning after confirming that she had complained to the NYSDOH

2 Defendants’ attempt to refute Plaintiff’s asserted fact on this issue is based on a periodical’s
characterization of the executive order’s Mask Mandate and not the executive order itself.
Compare Dkt. No. 94-8 at 4-5 (citing Dkt. No. 92-15), with Dkt. No. 92-16 at 3.
about compliance with the COVID Mandates at KELS. Dkt. No. 94-8 at 8. Aside from the
conversation in which she was terminated, Ms. Coolman was not warned about or disciplined for
her conduct or performance at KELS. Id. at 9-10. Defendants acknowledge that they fired Ms.
Coolman for submitting complaints to NYSDOH, but argue that such adverse employment action
resulted from the fact that the complaints were false. Id. at 8-9; see also Dkt. No. 91-9 at 5 (“Dr.

Kwiat . . . terminated Ms. Coolman’s employment because he suspected she made a false report
to the NYSDOH in an effort to close his practice.”) (emphasis added). Defendants did not
investigate Ms. Coolman’s concerns. Dkt. No. 94-8 at 9.
B. OSHA Section 11(c)
“Section 11 . . . prohibits employers from retaliating against their employees for reporting
possible safety and health issues.” Perez v. Champagne Demolition, LLC, No. 1:12-CV-1278
(FJS/TWD), 2016 WL 3629095, at *3 (N.D.N.Y. June 29, 2016) (citing 29 U.S.C. § 660(c)(1)).
The Department of Labor interprets Section 11(c) to include “complaints made to State or local
agencies regarding occupational safety and health conditions” as conduct protected from employer

retaliation, so long as such complaints “relate to conditions at the workplace, as distinguished from
complaints touching only upon general public safety and health.” 29 C.F.R. § 1977.9(b). An
employee who believes she has been discriminated against in violation of Section 11(c)(1) may
file a complaint with the Secretary of Labor, who will then investigate the claim. 29 U.S.C.
§ 660(c)(2). If the Secretary determines that a violation has occurred, she must bring an action in
federal court. Id. OSHA is remedial and preventative in nature and is to be liberally construed to
effectuate its congressional purpose. Su v. Kwiat Eye & Laser Surgery, PLLC, No. 1:22-cv-00264
(AMN/DJS), 2023 WL 4847315, at *3 (N.D.N.Y. July 28, 2023) (quotation omitted); accord New
York State Elec. & Gas Corp. v. Sec’y of Lab., 88 F.3d 98, 103 (2d Cir. 1996).
“To prevail upon a Section 11(c) retaliation claim [at summary judgment], the Secretary
must prove (1) the whistleblower’s participation in a protected activity, (2) a subsequent adverse
action by the employer against the whistleblower employee, and (3) a causal connection between
the two.” Champagne Demolition, 2016 WL 3629095, at *3. As to the first element, “‘complaints
to employers, if made in good faith’ regarding occupational safety and health matters, are protected

under OSHA.” Id. (quoting 29 C.F.R. § 1977.9(c)). Section 11(c) also protects “complaints made
to State or local agencies regarding occupational safety and health conditions” as conduct protected
from employer retaliation, so long as such complaints “relate to conditions at the workplace, as
distinguished from complaints touching only upon general public safety and health.” 29 C.F.R.
§ 1977.9(b); see also Lopez v. Burris Logistics Co., 952 F. Supp. 2d 396, 419 (D. Conn. 2013), on
reconsideration (Sept. 23, 2013). As to the second element, an action is “materially adverse” when
it would likely “dissuade or deter a reasonable worker from exercising his legal rights.” Perez v.
Eastern Awning Sys., No. 3:15-cv-01692 (MPS), 2018 WL 4926447, at *7 (D. Conn. Oct. 10,
2018) (citing Millea v. Metro-N. R. Co., 658 F.3d 154, 163 (2d Cir. 2011)). Accordingly, under

Section 11(c)(1) discharging an employee for filing a complaint “under or related to [OSHA]” or
for “statements given in the course of . . . investigations” is an adverse action. Su v. Milford Sports
Bars, LLC., No. 3:22-cv-321 (VAB), 2023 WL 10509599, at *6 (D. Conn. Dec. 15, 2023) (quoting
respectively 29 U.S.C. § 660(c)(1) and 29 C.F.R. § 1977.11). Courts in the Second Circuit
evaluating Section 11(c) retaliation claims have also found that selectively enforcing employment
policies can qualify as adverse action. Eastern Awning, 2018 WL 4926447, at *8 (citing Valenti
v. Massapequa Union Free Sch. Distr., No. 09-cv-977 (JFB), 2010 WL 475203, at *5 (E.D.N.Y.
Feb. 5, 2010)). Finally, “causation can be shown either: (1) indirectly, by showing that the
protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the
defendant.” French v. Albany Med. Ctr., No. 1:22-CV-252 (MAD/DJS), 2024 WL 2958461, at
*16 (N.D.N.Y. June 12, 2024) (quoting Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561,
581 (S.D.N.Y. 2010)). Indirect proof through a temporal relationship “may be established ‘by

showing that the protected activity was closely followed in time by the adverse action.’” Mullins
v. City of N.Y., 626 F.3d 47, 53 (2d Cir. 2010) (quoting Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)); see, e.g., Milford Sports Bars, 2023
WL 10509599, at *5 (finding a causal connection where “the events occurred the same day or
within a few days and no other explanation was provided”).
“Additionally, Section 11(c) claims are subject to the burden shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): Plaintiff’s burden to show prima facie
case; Defendant’s burden to articulate a legitimate, nondiscriminatory reason for the employment
action; and Plaintiff’s burden to show that Defendant’s reason was pretextual.” Champagne

Demolition, 2016 WL 3629095, at *3. A plaintiff’s burden of establishing a prima facie case is
“minimal” and “not onerous.” Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam);
accord St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). At the third step “‘the plaintiff
must prove that the desire to retaliate was a but-for cause of the challenged employment action’”
which “‘does not require proof that retaliation was the only cause of the employer’s action’ [but
only] ‘that the adverse action would not have occurred in the absence of the retaliatory motive.’”
Carter v. TD Bank, N.A., No. 23-950, 2024 WL 2828470, at *3 (2d Cir. June 4, 2024) (quoting
respectively Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015), and Zann Kwan
v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)). “[A] plaintiff is not required to
demonstrate the falsity of the [defendant’s] proffered reason[s,]” Bart v. Golub Corp., 96 F.4th
566, 570 (2d Cir. 2024), “‘but only that they were not the only reasons and that a prohibited factor
was at least one of the motivating factors’ for the decision.” Wheeler v. Praxair Surface Techs.,
Inc., No. 21 CIV. 1165 (PAE), 2023 WL 6282903, at *14 (S.D.N.Y. Sept. 26, 2023) (quoting
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)).

C. The Summary Judgment Motions
1. Defendants Are Liable for Violating Section 11(c)
Defendants all but concede liability for the prima facie claim of retaliation under Section
11(c): “Dr. Kwiat confirmed that Ms. Coolman was terminated for filing a false complaint with
the NYSDOH.” Dkt. No. 94-7 at 16 (citing Dkt. No. 94-3 at 104:3-22); see, e.g., Milford Sports
Bar, 2023 WL 10509599, at *5 (finding a causal connection between the protected activity and
the adverse action “because the events occurred [on] the same day”). Notwithstanding their
apparent concession, Defendants have two primary arguments in their Motion and in opposition
to Plaintiff’s Motion. First, Defendants argue that Plaintiff cannot meet the first element of her

retaliation claim because “all of Ms. Coolman’s complaints, whether in the office or as directed to
the NYSDOH, touch only upon general public safety and health concerns arising from the COVID-
19 pandemic” and thus are not protected by Section 11(c). Dkt. No. 91-8 at 13 (citing 29 C.F.R.
§ 1977.9(b); Kulmann v. Yale-New Haven Hosp., No. NNHCV106010414, 2012 WL 234218, at
*3 (Conn. Super. Ct. Jan. 4, 2012)). Second, Defendants argue that “[b]ecause Ms. Coolman’s
false complaints were not made in good faith, they do not qualify for the protections of OSHA
and, more importantly, they form a legitimate and non-discriminatory basis for the termination of
her employment.” Dkt. No. 94-7 at 14-15; accord Dkt. No. 91-8 at 13-15. Thus, Defendants argue
that Ms. Coolman was not fired for complaining to the NYSDOH, but rather because the
complaints were false. While this articulation meets Defendants’ modest burden at the second step
of the McDonnell Douglas analysis, neither of Defendants’ arguments is sufficient at the third step.
First, Defendants attempt to frame Ms. Coolman’s complaints as concerning “patient well-
being and management” and not “about occupation-specific risks related to COVID-19.” Dkt.
No. 96 at 7. It is undisputed, however, that Ms. Coolman’s specific concern about patients’ health

was that they would spread their illness in the workplace to her or other employees because KELS
did not comply with the Mask or Screening Mandates prior to patients’ contact with KELS
employees. See id. at 8 (noting that Ms. Coolman testified at her deposition that her complaint
concerned “not checking temperatures o[f] patients, not every patient wearing masks. We had
patients [ ] coming in who tested positive for COVID.”) (quoting Dkt. No. 91-4 at 43:18-22).3 The
fact that the risk of contracting a highly contagious illness exists outside of the workplace does not
render enhanced risks in the workplace as a result of required job responsibilities out of the purview
of OSHA. Indeed, Section 11(c) does not require a plaintiff to demonstrate that the employee
reported an actual violation of the law, but merely that the report concerned health and safety in

the workplace. See Walsh v. Cmty. Health Ctr. of Richmond, Inc., No. 21-CV-3094 (ARR) (TAM),
2022 WL 4539264, at *2 (E.D.N.Y. Sept. 28, 2022) (contrasting Section 11(c) to New York Labor
Law Section 740 which requires a “plaintiff to demonstrate that she reported an actual violation of
the law”); accord Champagne Demolition, 2016 WL 3629095, at *5.
Second, Defendants argue that Ms. Coolman’s complaints internally and to NYSDOH were
not protected activity because they were not made in good faith since she did not have firsthand
knowledge of the issues, such as any particular patient’s COVID status, and she knew that KELS

3 Defendants are similarly incorrect that Ms. Coolman’s deposition testimony would not provide
admissible evidence that Defendants retaliated against her for making complaints about conditions
at the workplace, as opposed to only touching on general public safety and health.
had taken steps toward compliance with the Mandates, or that some individuals at KELS had
voluntarily complied. Dkt. No. 91-8 at 13-15. However, Ms. Coolman’s complaints concerned a
matter about which she had firsthand knowledge – KELS’s compliance with the Screening and
Mask Mandates. Defendants do not seriously dispute that they were in violation of the COVID
Mandates, instead they only aver that they took steps to follow the Mandates, but acknowledge

that they did not require compliance. See supra § IV.A.
As for a legitimate, nondiscriminatory reason for the termination, Defendants argue that
Ms. Coolman made a false report to NYSDOH in order to close down KELS, which conduct KELS
could punish without violating Section 11(c). Dkt. No. 94-7 at 14. However, a complaint to a
state health agency need only be based on a good faith, reasonable belief. See Champagne
Demolition, 2016 WL 3629095, at *3; accord Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d
139, 148 (2d Cir. 2014) (observing, in the Title VII retaliation context, that a plaintiff “need only
demonstrate that she had a good faith, reasonable belief that the underlying challenged actions of
the employer violated the law”) (quotation omitted). Here, as noted above, there is evidence that

Ms. Coolman’s complaints were made based on a good faith, reasonable belief that KELS was
actively violating and would not come into compliance with the Mandates without outside
assistance. See supra § IV.A. And as for Defendants’ burden, no reasonable juror could find that
Ms. Coolman’s complaints were made in bad faith for the purpose of shuttering KELS since the
outcome of her complaint would have been an investigation, not an automatic shuttering of KELS.
Dkt. 94-8 ¶ 57. Instead, the Court finds on the ample record before it that Defendants’ argument
is at best pretext since there are no contemporary indications that Defendants did not believe Ms.
Coolman’s complaints to be accurate, and indeed she was terminated immediately upon
confirmation that she had complained to NYSDOH, despite the fact that she had never been
disciplined prior to that time. See, e.g., Eastern Awning, 2018 WL 4926447 at *8 (finding a
temporal connection between the protected activity and the adverse action when employees were
barred from returning to work since an OSHA investigator arrived at the workplace for an
inspection after one of the employees had filed a complaint with OSHA). Defendants further
concede that Dr. Kwiat’s actions contradicted KELS’s internal policy in light of his testimony that

if an employee raised concerns about COVID Mandate adherence, he would discuss the concerns
with them. Dkt. 92-1 at 18. However, Dr. Kwiat did not discuss Ms. Coolman’s concerns with
her before her termination, id., and did not utilize KELS’s progressive discipline system with Ms.
Coolman, which entails issuing a verbal warning, then a written warning, before terminating an
employee. Dkt. No. 94-8 ¶ 57; see, e.g., Chao v. Party Rental Enters., Inc., No. 5:07-CV-0449
(NAM/GHL), 2008 WL 3851812, at *9 (N.D.N.Y. Aug. 15, 2008) (finding a defendant’s showing
inadequate where it did not “elaborate on a single fact concerning the inadequacy of [the plaintiff]
as an employee, nor does he explain why, if indeed her employment record was so poor, he waited
until after she had complained to DOL about safety conditions to terminate her”); Eastern Awning,

at *8 (selectively enforcing employment policies can qualify as adverse action in retaliation
claims);4 cf. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), as amended
(June 6, 2001) (affirming dismissal of a retaliation claim where “the adverse employment actions
were both part, and the ultimate product, of ‘an extensive period of progressive discipline’”).
Accordingly, Plaintiff’s Motion is granted to the extent that Defendants Dr. Kwiat and

4 In Eastern Awning, a supervisor “testified that, despite frequent unexcused absenteeism among
Eastern Awning employees, he knew of no employees who had been terminated for missing work
in the ten years he had worked for the company” such that the defendant there had selectively
enforced absenteeism policies against an employee “which is itself sufficient for adverse action in
the retaliation context.” 2018 WL 4926447 at *8.
KELS are liable for violating Section 11(c).5 The Court next considers the relief Plaintiff seeks.
2. Injunctive Relief
Plaintiff seeks an order that would enjoin “Defendants from future violations of Section
11(c), require Defendants to post a notice that they cannot discriminate against employees for
engaging in protected activities, and require Defendants to expunge [negative] references to Ms.

Coolman from personnel and company records and provide a neutral referral.” Dkt. No. 92-1 at
28. Defendants’ Opposition does not address Plaintiff’s arguments in support of the request for
injunctive relief in Plaintiff’s Motion. See generally Dkt. No. 94-7. “[I]t is well-settled that a
court may treat as conceded any argument to which a [non-moving] party does not respond.”
Champagne Demolition, 2016 WL 3629095, at *3 (citing Rusyniak v. Gensini, No. 5:07-CV-0279
(GTS/GHL), 2009 WL 3672105, *1 n.1 (N.D.N.Y. Oct. 30, 2009)). “Under such circumstances,
the moving party need only meet the ‘modest’ burden of showing that ‘the legal arguments
advanced in the movant’s memorandum of law are facially meritorious.’” Id. (quoting Sorrentino
v. Barr Labs., Inc., No. 5:09-CV-0591 (GTS/RFT), 2010 WL 2026135, *4 (N.D.N.Y. May 20,

2010)). Because Defendants did not address this argument, the Court considers whether Plaintiff’s
arguments are facially meritorious.
OSHA explicitly provides that a district court “shall have jurisdiction, for cause shown to
restrain violations” of Section 11(c). 29 U.S.C. § 660(c)(2). Courts have applied this equitable
remedy to enjoin defendants from engaging in conduct that violates the law, from taking action
against a wrongly terminated employee’s future job prospects, and for posting notices about
OSHA. See, e.g., Donovan v. Com. Sewing, Inc., 562 F. Supp. 548, 556 (D. Conn. 1982) (after

5 “The Court’s decision to grant Plaintiff’s motion for summary judgment renders Defendants’
motion for summary judgment moot.” Champagne Demolition, 2016 WL 3629095, at *7.
finding “that the defendant did violate [Section 11(c)] by discharging [the plaintiff] in retaliation
for her health and safety complaints,” the court enjoined the defendant company “and all persons
acting or claiming to act in its behalf and interest, . . . from violating section 11(c)[,]” “from making
any attempts to hinder [the plaintiff] from finding another job[,]” and required the defendant to
post an OSHA notice); see also Dkt. No. 92-1 at 28 (collecting out-of-circuit cases).

Accordingly, Plaintiff has made the modest showing required in order to justify the
unopposed request for relief, and Plaintiff’s Motion is granted as to the requested injunctive relief.
3. Damages and Costs
Plaintiff’s Motion seeks an award of $773,931.77 in damages. This sum is comprised of
(a) $173,931.77 in compensatory damages for backpay, prejudgment interest, anticipated taxes
due on the award, and front pay; (b) $100,000.00 in emotional distress damages; and (c)
$500,000.00 in punitive damages. Dkt. No. 97 at 10-14. In support of the request for damages,
Plaintiff submits a declaration of Mr. Edward Rhoades, a Supervisory Investigator with the United
States Department of Labor, Occupational Safety and Health Administration. Dkt. No. 92-26 (the
“Rhoades Declaration”).6 Additionally, Plaintiff seeks an award of costs, subject to Plaintiff’s

submission of a bill of costs following judgment. Dkt. No. 92-1 at 29.
OSHA provides that a court may order “all appropriate relief” including damages upon a
finding of liability for a violation of Section 11(c). See Reich v. Cambridgeport Air Sys., Inc., 26

6 Mr. Rhoades calculated compensatory damages in this case as follows: (a) $49,625.71 in
backpay, calculated by subtracting what Ms. Coolman would have earned at KELS from her
termination in February 2021 through January 2024 by what she has earned at another hourly job
she has worked since October 2021; (b) $4,948.61 in pre-judgment interest on the backpay owed,
as of January 2024; (c) $30,294.22 in “tax gross up” to compensate Ms. Coolman for the increased
federal and state tax burdens she would bear upon the award of the lump sum backpay award; and
(d) $94,011.84 in front pay for two years of KELS income minus the income Ms. Coolman has
earned at her new job. Dkt. No. 92-26 at 4-6; see also Dkt. No. 92-1 at 19-25.
F.3d 1187, 1194 (1st Cir. 1994) (concluding that “the statutory power to award ‘all appropriate
relief’ gave the district court authority, where such relief is in fact appropriate, to award
compensatory and even such traditional other relief as exemplary damages”) (quoting Section
11(c)(2)). The common relief awarded for violations of Section 11(c) includes compensatory
damages in the form of backpay, prejudgment interest, and front pay where reinstatement is not

appropriate. See Martin v. H.M.S. Direct Mail Serv., Inc., 936 F.2d 108, 109 (2d Cir. 1991) (per
curiam) (holding that plaintiff’s documentary evidence including “the precise amount of income
that [the complainant] received during” the relevant period, subtracted from what the complainant
would have received from the defendant “justif[ied] an award of back pay” and that prejudgment
interest is “an appropriate component of a restitutionary back pay award” under OSHA). Courts
in this Circuit have also applied this principle to find a plaintiff entitled to tort and punitive
damages in addition to compensatory damages in Section 11(c) actions.7 See, e.g., Milford Sports
Bars, 2023 WL 10509599, at *7-9 (awarding back pay, interest, emotional distress damages,
earned compensation, and punitive damages for violations of Section 11(c)); Champagne

Demolition, 2017 WL 3641629, at *3-4 & n.6 (ordering a jury trial to resolve compensatory,
emotional, and punitive damages, and collecting out-of-circuit cases).
Defendants acknowledge that “district courts have the authority to ‘grant summary
judgment as to damages for which there exist[ ] no disputed issues of material fact.’” Dkt. No. 94-
7 at 18 (quoting Hart v. Ricks Cabaret Int’l, Inc., 60 F. Supp. 3d 447, 474 (S.D.N.Y. 2014)).
Defendants argue, however, that an award of damages is inappropriate because they are not liable,

7 Although it appears that the Second Circuit has not yet ruled directly on the issue, it has cited
with approval Reich’s analysis and holding “that ‘all appropriate relief’ under Section 11 . . .
included money damages.” Tanvir v. Tanzin, 894 F.3d 449, 468 (2d Cir. 2018), aff’d, 592 U.S. 43
(2020).
and if they are liable, then damages should be decided at a damages inquest or by a jury. Dkt.
No. 94-7 at 18-19. In particular, Defendants contend that (a) a punitive damages award especially
is solely within the province of a jury; (b) the Court should disregard Plaintiff’s declaration in
support of their damages request because the declaration is an improperly submitted expert report;
and (c) Ms. Coolman has improperly failed to mitigate her damages. Id.

Plaintiff argues in Reply that “Defendants do not actually dispute the underlying material
facts with any evidence” and observes that instead, “Defendants’ primary opposition to these
categories of damages is that OSHA Investigator Rhoades’ declaration should be ignored as
improperly disclosed expert testimony.” Dkt. No. 97 at 9-10. After reviewing the submissions,
the Court is not convinced that Plaintiff’s “lay” Rhoades Declaration constitutes an expert report
subject to Federal Rule of Civil Procedure 26(a)(2)(B), cf. Dkt. No. 94-7 at 19. See United States
v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (“A witness’s specialized knowledge, or the fact that
he was chosen to carry out an investigation because of this knowledge, does not render his
testimony ‘expert’ as long as it was based on his investigation and reflected his investigatory

findings and conclusions, and was not rooted exclusively in his expertise.”) (quotation omitted);
see also United States v. Ortiz, 536 F. App’x 127, 129 (2d Cir. 2013) (“At the end of the day, while
the witness may have brought a more trained ear to the process, her testimony was based on her
own investigation and perceptions, not on her specialized knowledge.”). In Rigas, the Second
Circuit held that an accountant’s testimony constituted a lay opinion, and not impermissible expert
testimony, “because it did not address what the appropriate accounting technique should have
been, but was instead simply offered to show what the amount of the debt would have been had
the fraud not occurred.” United States v. Cuti, 720 F.3d 453, 460 (2d Cir. 2013) (citing Rigas, 490
F.3d at 225). Similarly, here the Rhoades Declaration seeks to explain what KELS would have
paid Ms. Coolman without the violations alleged by Plaintiff. Mr. Rhoades is undeniably more
familiar with the calculations he discusses in light of his job, however that does not render his
performance of the damages calculations or explanations as to how he reached certain sums expert
testimony under Federal Rule of Evidence 702. See Fed. R. Evid. 701 (lay “testimony in the form
of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful

to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within the scope of Rule 702”). As such,
the Court could use the Rhodes Declaration to determine certain compensatory damages that
Defendants owe at this juncture.8
On the other hand, Plaintiff’s request for emotional distress damages and punitive damages
is best determined at a damages inquest.9 There are questions of fact around those damages which
Defendants have directly cited or at least referenced, which have not been resolved by the Court’s
determination of Defendants’ liability. Specifically, Defendants argue that Ms. Coolman may have
had pre-existing psychological conditions which may have been exacerbated, as opposed to

caused, by Defendants’ wrongful conduct. See, e.g., Acosta v. Champagne Demolition, LLC, No.
1:12-CV-1278 (FJS/TWD), 2017 WL 3641629, at *4 & n.6 (N.D.N.Y. Aug. 21, 2017) (finding it
appropriate to have a jury trial on Section 11(c) claims for emotional distress and punitive damages

8 Plaintiff is correct that Defendants have largely not responded to Plaintiff’s statement of material
undisputed facts with facts of their own, and instead only attack the Rhoades Declaration. Dkt.
No. 97 at 10-11 (citing Dkt. No. 94-7 at 18-19); see Dkt. No. 94-8 at 11-17. Despite this
impropriety, in light of the Court’s determination that the Rhoades Declaration is not an improperly
submitted expert declaration, Defendants will be allowed a further attempt to refute the substance
of Plaintiff’s compensatory damages assertions, including with respect to the mitigation issue, at
the forthcoming damages inquest. Cf. Dkt. No. 97 at 11 (citing, inter alia, Solis v. SCA Rest. Corp.,
938 F. Supp. 2d 380, 402 (E.D.N.Y. 2013), a Fair Labor Standards Act case in which the court
awarded damages following a bench trial).
9 And possibly by a jury unless both parties consent to conducting the inquest before the Court.
which are “legal remedies . . . in addition to, and different from, any equitable remedy that the
Court could order”).10 Defendants also argue that Ms. Coolman insufficiently mitigated her
damages, which presents a disputed question of fact as to her compensatory damages.11 Dkt.
No. 94-7 at 18; Dkt. No. 94-8 at ¶¶ 99-100; see Sharkey v. J.P. Morgan Chase & Co., No.
10cv3824 (DLC), 2018 WL 1229831, at *11 (S.D.N.Y. Mar. 5, 2018) (granting a Rule 50 motion

and ordering a new trial as to compensatory and emotional distress damages in an OSHA
retaliation case where mitigation was at issue); cf. Milford Sports Bars, 2023 WL 10509599, at *9
(awarding $200,000 in punitive damages for violations of Section 11(c) following a grant of
default judgment against defendants). Ultimately, because it would be inefficient for the court to
determine damages in this matter piece-meal and Defendants have not substantively argued the
specific components of Plaintiff’s requested compensatory, emotional, or punitive damages, the
full question of damages will be addressed at a forthcoming damages inquest, to be scheduled
consistent with this Order.
Finally, Plaintiff’s request for costs in an amount to be determined later, Dkt. No. 92-1 at

29, is premature because issues of damages must still be litigated and judgment has not been
entered. Accordingly, this request in Plaintiff’s Motion is denied without prejudice to renewal.

10 Notably, Plaintiff’s cited example on this issue, see Dkt. No. 97 at 12 n.8 (citing Miner v. City
of Glens Falls, 999 F.2d 655 (2d Cir. 1993)), awarded emotional distress damages following a
two-day damages bench trial, not at summary judgment. Miner, 999 F.2d at 659, 662-63.
Plaintiff’s cited example for an award of punitive damages at summary judgment fairs no better.
See Dkt. No. 97 at 14 (citing Mathie v. Fries, 121 F.3d 808, 811, 815-17 (2d Cir. 1997), in which
the Second Circuit approved the award of punitive damages following a bench trial, but reduced
the award amount from $500,000 to $200,000).
11 Indeed, Plaintiff did not address this issue on Reply other than to note the lack of record citation,
see Dkt. No. 97 at 10-13, and the Court would benefit from additional briefing on this issue as it
applies to the claimed Section 11 damages, see, e.g., Donovan, 562 F. Supp. at 554 (observing that
“OSHA does not incorporate a statutory duty to mitigate damages as does Title VII”).
D. The Report-Recommendation
As neither party has objected to the Report-Recommendation, and the time to do so has
elapsed, this Court reviews the Report-Recommendation for clear error. In reaching his
recommendation, Magistrate Judge Stewart considered each of the elements that courts in the
Second Circuit use to determine if a person may be held in contempt for failure to comply with a

discovery order. Dkt. No. 90 at 3-4 (citing, inter alia, Paramedics Electromedicina Comercial,
Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004); Fed. R. Civ. P. 37; 28
U.S.C. § 636(e)(6)(B)(iii)). After certifying that sufficient facts exist to establish a finding of
contempt and noting Dr. Kwiat’s steps since June 2023 to comply with Court orders, Magistrate
Judge Stewart recommended that the District Court hold Dr. Kwiat in contempt and impose a fine
of $1,250. Id. at 4-7. Having reviewed the Report-Recommendation for clear error and found
none, the Court adopts the Report-Recommendation in its entirety.
IV. CONCLUSION
Accordingly, the Court hereby

ORDERS that Defendants’ motion for summary judgment, Dkt. No. 91, is DENIED in its
entirety; and the Court further
ORDERS that Plaintiff’s motion for summary judgment, Dkt. No. 92, is GRANTED with
respect to liability as to both Defendants and the requested injunctive relief, and DENIED with
leave to renew with respect to damages and costs; and the Court further
ORDERS that the parties shall confer and provide a joint status letter to the Court within
thirty (30) days of this Order including: (1) whether they consent to conducting the damages
inquest before the Court rather than a jury; and (2) a proposed briefing schedule on the issue of
damages and a proposed hearing date, or the parties’ respective positions; and the Court further
ORDERS that Defendants Dr. David Kwiat and Kwiat Eye and Laser Surgery, PLLC are
hereby ENJOINED as follows: Defendants shall not commit any additional violations of section
11(c) of OSHA, 29 U.S.C. § 660(c); Defendants shall purge all references to Ms. Coolman’s illegal
termination from her personnel records; Defendants and their agents shall refrain from any
attempts to hinder Ms. Coolman from securing another job; and Defendants are required to post
an OSHA notice in their employee break room for a period of at least 90 days; and the Court further
ORDERS that the Report-Recommendation, Dkt. No. 90, is ADOPTED in its entirety;
and the Court further
ORDERS that Defendant Dr. Kwiat is to pay a contempt fine of $1,250.00 to the Clerk
of Court, due and payable immediately; and the Court further
ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.

Dated: August 6, 2024 Quel . Jaraa’ CL
Albany, New York Anne M. Nardacci
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659928. Public record. Not legal advice.